Opinion
CV416-119
01-06-2017
GREG DAVIS, Petitioner, v. SAMUEL S. OLENS; Attorney General; JUDGE MICHAEL L. KARPF, Respondents.
ORDER
Proceeding pro se, Greg Davis filed a "Motion Under Rule 60(b)(3) Fraud." Doc. 1. But it had nothing to do with anything that's occurred in this Court. Instead, it attacked what Davis seemed to say was a state criminal court "competency judgment" against him. Id. at 4. The Clerk docketed it as a 28 U.S.C. § 2254 petition. The Court accepted the Clerk's designation for docket-keeping purposes but abstained from judicially characterizing the filing as a § 2254 petition -- until Davis clarified what he sought. It directed the Clerk to send him specific forms for filing both habeas and civil rights cases, and gave him a deadline for filing the one claim he intended to advance. Davis v. Olens, 2016 WL 3034069 at * 2 (S.D. Ga. May 26, 2016).
Still proceeding pro se, Davis has responded with a 42 U.S.C. § 1983 form Complaint raising claims against Georgia's Attorney General and a state court judge. Doc. 4. However, he is an inmate who also moves for leave to proceed in forma pauperis. Doc. 2. That triggers application of the Prison Litigation Reform Act (PLRA) and this Court's two-step, Consent and Prison Account process. See Smith v. Savannah Metro Police Department, 2016 WL 4492821 at * 4 (S.D. Ga. Aug. 25, 2016). Davis faces a $350 filing fee on that score. Hachey v. Moody, 2016 WL 7242563 at * 1 (S.D. Ala. Nov. 21, 2016). But if in substance he is bringing a habeas petition, then a different ($5) fee applies. 28 U.S.C. § 1914(a); Ubele v. United States, 2016 WL 3276958 at *1 n. 1 (S.D. Ga. June 13, 2016). And substance trumps nomenclature. See Castro v. United States, 540 U.S. 375, 381 (2003) (substance must govern over nomenclature, so a proceeding's label that a litigant chooses is irrelevant); Moses v. Kramer, 2012 WL 1448114 at *1 (S.D. Ga. Feb. 2, 2012).
Davis' latest pleading reveals the substance of his case. Evidently the State prosecuted Davis for "several crimes arising out of Savannah Georgia in . . . State of Georgia vs. Greg Davis, CR95-0503-BIA,"doc. 1 at 3, and in that case defendant Judge Michael L. Karpf "perpetrated a fraud in violation of the Federal Rules of Evidence when he selected two state appointed expert witnesses to falsely navigate [sic] and testify that the petitioner was competent to stand trial." Doc. 4 at 10. He seeks no money damages but requests an "evidentiary hearing" to "set aside the judgement." Id. at 15; see also id. at 5-8 (raising other allegations but essentially urging the same result).
The Court has independently located the State court docket for the 1995-1996, "Case Number CR950503" prosecution of Davis for, inter alia, rape, kidnapping and armed robbery. See attached. His Department of Corrections record (also attached) shows that he is serving a life sentence on various charges.
The Court concludes that Davis is advancing a § 2254 petition, but evidently is being coy about it (there is an extraordinarily high probability that it is time-barred). And no prior § 2254 petition shows up in the record. Before passing on his IFP motion, however, the Court will issue him a Castro warning to advise him of the implications of the Court's construction. If he elects to proceed with his § 2254 petition, the Court will (since he is indigent) grant his IFP motion. But if he abandons this case, that motion will be denied as moot.
Davis had to file for § 2254 relief within one year after the date his conviction became final. 28 U.S.C. § 2244(d)(1).
See Castro, 540 U.S. at 383 ("[W]hen a court recharacterizes a pro se litigant's [filing] as a first § 2255 motion . . . [it] must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on 'second or successive' motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has."). Castro and its warnings also apply in the § 2254 context. See Jones v. O'Neal, 2012 WL 6084650 at * 1 n. 3 (S.D. Ga. Dec. 6, 2012). --------
In any event, Davis is warned that:
No sooner than 30 days from the date this Order is served, the Court will re-characterize your 42 U.S.C. § 1983 Complaint (doc. 4) as a 28 U.S.C. § 2254 petition. You are thus warned of this eventuality, but you can exert some control right now. For example, you can withdraw your § 2254 petition expressly by placing your written election within your prison's mail system by no later than the thirtieth day after the date this Order is served. Or, you can do nothing, in which case (after that 30-day period) the undersigned will advise dismissal of this matter without prejudice -- on abandonment grounds. See LOCAL RULE 41.1.
If you choose to proceed under § 2254, you will lose your ability to file any successive petition on this same matter without first seeking permission to do so from the Eleventh Circuit. And any second petition will be subject to the restrictive conditions set forth in 28 U.S.C. § 2244(b)(2) -- conditions that do not apply to a first § 2254 petition.
Finally, your current filing (doc. 4) is deficient, so if you wish to proceed under § 2254, you must reconstitute your claims within the AO 241, § 2254 form petition included with this Order. You also must answer all of the questions on that form, including the ¶ 18 "TIMELINESS OF PETITION" question.
The Clerk is DIRECTED to: (a) send to Davis a standard form 28 U.S.C. § 2254 petition; and (b) docket-specify the thirty-day deadline noted above.
SO ORDERED, this 6th day of January, 2017.
/s/_________
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA
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